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2017 (7) TMI 476 - AT - Central ExciseConfiscation - 8 bags of Ronak brand Gutkha containing 94,200 pouches of MRP ₹ 1 seized at the time of inspection - redemption fine - penalty - Rule 17 of Pan Masala Packing Machine (capacity determination & collection of duty) Rules, 2008 - Section 11A read with Section 3A of the Central Excise Act, 1944 - jurisdiction - Held that: - The order is wholly without jurisdiction being under Section 11 A of the Act in view of the ruling of Hon'ble Supreme Court in the case of Hans Steel Rerolling Mills [2011 (3) TMI 2 - SUPREME COURT OF INDIA], where it was held that Importing of elements of one scheme of tax administration to a different scheme of tax administration would be wholly inappropriate as it would disturb the smooth functioning of that unique scheme. The time limit prescribed for one scheme could be completely unwarranted for another scheme and time limit prescribed under Section 11A of the Act is no exception. There is no redetermination and or challenge by Revenue to the orders determining duty payable under Rule 6 of the Pan Masala Packaging Rules, 2008. The confiscation of the gutkha available in the factory is also wrong as such finished products were found inside the factory and there is no allegation that the same were being attempted to be removed in a clandestine way. Further from the photographs which are relied upon by the Revenue it is evident that the machines have been kept in a small place and placed very close to each other, there being hardly any space to operate and/or space for workers to operate the said machines. It appears like, in a tightly packed elevator people are doing aerobics, as per allegation in the Show Cause Notice. Further from examination of the so called invoices of the machine manufacturer which have been relied upon in the show cause notice, we find that the format of the said invoices is very different from the earlier invoices issued a few months back for purchase of packing machine, Supari cutting machine etc., from the same manufacturer/supplier - Further as stated by the said manufacturer- Lalit Kumar Singh, who has stated that he has sold the subsequent seven machines on credit, but has not produced any evidence of delivery of such machines on credit nor any credible evidence in the form of any acknowledgment from the authorized person of M/s Wizard Fragrances that they have received those machines on credit. It is very unlikely that any manufacturer will deliver machines on credit without retaining proper evidences for the same. Duty imposed along with confiscation & penalty being unsustainable - appeal allowed - decided in favor of appellant.
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